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Timothy Demond Barry v. T. Felker

May 4, 2011

TIMOTHY DEMOND BARRY, PLAINTIFF,
v.
T. FELKER, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: George Foley, Jr. United States Magistrate Judge

ORDER

Motion for Reconsideration (#45)

This matter is before the Court on Defendants Bishop and Albonico's Notice of Motion for Reconsideration and Memorandum and Points of Authorities in Support of Their Motion for Reconsideration (#45), filed January 13, 2011.

BACKGROUND

In his Complaint (#1), Plaintiff Timothy Barry alleges that he was subjected to cruel and unusual punishment by Defendants in violation of his Eighth Amendment rights. Plaintiff alleges that on July 23, 2007, the correctional officers at the High Desert State Prison ("HDSP") demanded that Plaintiff and other inmates submit to a strip search. After refusing to be strip searched, Plaintiff alleges that he was handcuffed and placed on his knees by a correctional officer acting under the direction of Defendants J. Bishop and N. Albonico. Plaintiff complained that the asphalt was too hot after ten (10) minutes of kneeling. Plaintiff states that he could no longer take the pain and fell over. The correctional officers again placed him on his knees and left him in that position for almost an hour. Plaintiff alleges that RN Flaherty examined Plaintiff and told Plaintiff that he had second degree burns on his knees.

On August 31, 2010, Plaintiff filed a motion to compel, requesting that the Court order Defendants to further respond to interrogatories and requests for production that Plaintiff served on June 16, 2010. (#36). Plaintiff's interrogatories sought policies and procedures that were relevant to the incident where Plaintiff was injured at HDSP. (Id.) Plaintiff's requests for production asked for production of incident reports and medical reports of injury or unusual occurrences authored by prison staff on the date of Plaintiff's injury, July 23, 2007. (Id.) Defendants responded that the motion to compel should be denied because they properly responded to Plaintiff's discovery request by raising valid objections to many of Plaintiff's discovery requests. (#38). They argued that the Court should uphold Defendants' objections to the interrogatories because Plaintiff was requesting prison operational policies and procedures from the HDSP Department Operation Manual and Operational Procedures and that these materials were confidential. (Id.) Specifically, the defendants argued that disclosure of the materials "would compromise the safety and security of the institution." (Id.) In opposition to the request that they supplement their responses to Plaintiff's requests for production, the defendants argued that the incident report contained no relevant information and that the privacy interests of other prisoners prevented disclosure as the incident report included information about other prisoners. (Id.)

On December 14, 2010, the Court issued an order granting Plaintiff's motion to compel in part and overruling Defendants' confidentiality objections to Plaintiff's interrogatory nos. 2, 4, and 6-7. (#43 at 8). In doing so, the Court found that the defendants had failed to state any specific manner in which the prison would be compromised by providing Plaintiff with sections of the HDSP Department Operation Manual and Operational Procedures. (#43). Instead, the opposition and attached affidavit only recited the regulatory standard that "providing inmates with information contained in the specified sections would compromise the safety and security of the institution." (Id.) The Court held that mere recitation of the regulatory language without any further explanation is not enough for the Court to find the materials at issue to be confidential and ordered Defendant Bishop to produce the sections of the HDSP Department Operation Manual and Operational Procedures relevant to Plaintiff's interrogatory nos. 2, 4, and 6-7 and requests for production nos. 2 and 4. (#43) (citing Jacobs v. Scribner, 2009 WL 3157533, *3-*4 (E.D.Cal. Sept. 25, 2009) (partially overruling the defendants' objection to producing confidential sections of the Department Operational Manual because state agents may not refuse to respond to discovery requests by raising the allegation that a response would compromise the safety and security of the institution). The Court's order also overruled Defendants' privacy objection to request for production no. 2. (#43).*fn1

Recognizing the privacy concerns raised by the prison, the Court ordered that the incident reports should be produced but that the name of the inmates should be redacted. (Id.)

In the present motion, Defendants request that the Court reconsider and vacate its December 14, 2010 order (#43) compelling Defendant Bishop to substantively respond to Plaintiff's discovery requests.

DISCUSSION

While the Federal Rules of Civil Procedure do not explicitly recognize a petition for rehearing or motion to reconsider, this court has the inherent power to revise, correct, and alter interlocutory orders at any time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d 101, 105 (9th Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). This authority is governed by the doctrine that a court will generally not re-examine an issue previously decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone, Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998). However, a court has discretion to depart from the prior order when (1) the first decision was clearly erroneous, (2) there has been an intervening change of law, (3) the evidence on remand is substantially different, (4) other changed circumstances exist, or (5) a manifest injustice would otherwise result. Cuddy, 147 F.3d at 1114. In addition, the local rules require that a petitioner seeking reconsideration must also demonstrate what new or different facts of circumstances are claimed to exist which were not shown in the prior motion and why the facts or circumstances were not shown at the time of the prior motion. LR 230(j)(3)-(4).

1. Confidentiality Objection to Interrogatories

Defendants argue that the Court should vacate its prior order because there is sufficient evidence that providing inmates with information contained in the specified sections of the HDSP Department Operation Manual and Operational Procedures would compromise the safety and security of the institution. (#45). In support of this argument, Defendants attach the declaration of R. Dreith, the Litigation Coordinator for the California Department of Corrections and Rehabilitation. (#45-2 at 1-4). Dreith states that the Operational Procedure at issue, no. 102, provides detailed instructions for which HDSP staff should respond in the event of a major incident at the prison, as well as where they should go and how they should specifically act. (#45-2 at 1-2). In addition, the declaration states that the sections at issue from the HDSP Department Operation Manual detail the procedures for reporting and investigating incidents where force was used, procedures for crime scene preservation and instructions for which staff should respond to an incident and when. (#45-2 at 2). Dreith states that these procedures are confidential because allowing an inmate to know the routines of prison staff could allow the inmate to create an unsafe condition or use the information to thwart an investigation. (Id.)

In further support of their motion to reconsider its order compelling further response to Plaintiff's interrogatories, Defendants cite that previous courts have upheld the confidentiality objection to producing the HDSP Operational Procedures because they contain "critical prison security information that, if disclosed, could endanger prison staff and compromise tactical responses to prison alarms." (#45-1) (citing Ibanez v. Miller, 2009 US Dist LEXIS 98394 (E.D.CA Oct. 22, 2009)). In Ibanez, the court considered objections by the prison to the release of Operational Procedure no. 102. 2009 US Dist LEXIS 98394. Based on the declaration of an associate warden at the prison, the court upheld the prison's confidentiality ...


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